VENKATACHALIAH, J. ( 1 ) THIS appeal on behalf of the unsuccessful plaintiffs which was instituted originally in the Count of the District Judge, Mangalore, South kanara, as RANo. 7 of the 1971 on its file, and withdrawn to this Court, arises out of and is directed against the judgment and decree dated 17-4-1971 in OSNo. 131 of 1969 on the file of the Civil Judge, Mangalore, dismissing the suit in which plaintiffs sought a declaration of their entitlement to the sale, proceeds of 365 bags of supari held in deposit in IPNo. 7 of 1958 on the file of the Civil Judge, Mangalore. ( 2 ) THE material facts leading up to the institution of the suit, briefly stated, are the following : the third defendant-Annappa Subraya Nayak and Company, a firm of partners, carrying on business in supari is stated to have approached the second plaintiff at Bombay in 1958 for a loan on the pledge of certain bills of lading, allegedly representing a cargo of 4011 bags of supari on the steam-ship. "margaret Rose", and obtained from the second plaintiff a loan of Rs. 975,000/- on the security of the goods represented by the said bills of lading. The second plaintiff, in turn, is seated to have borrowed the said sum from the first-plaintiff by endorsing the said Bills of landing in favour of the latter. It is alleged by the plaintiffs that the bills of Lading so delivered to the second plaintiff, and, in turn, by the latter to the first-plaintiff, were not genuine, no. goods allegedly represented there by having been delivered to the shipping Company for carriage. The plaintiffs further say that the third defendant thereafter offered to supply fresh consignments of supari to secure the loan of rs. 9,75. 000/- already obtained by it, and, that accordingly, sent a consignment of 200 bags of supari to the second plaintiff by Lorry transport. The way-bill covering the said goods was, in turn, transferred by the second-plaintiff in favour of the first-plaintiff pursuant whereto, the latter , through its clearing agents D. Abraham and Sons (P) Ltd. , bombay, obtained delivery of the said goods. Thereafter, the third defendant is stated to have made a further despatch from Mangalpre to Bombay to the second plaintiff two more consignments of 60 bags and 105 bags respectively of supari through lorry transport covered by two way bills. Thereafter, the third defendant is stated to have made a further despatch from Mangalpre to Bombay to the second plaintiff two more consignments of 60 bags and 105 bags respectively of supari through lorry transport covered by two way bills. The second-plaintiff claims to have endorsed the said two way-bills also in favour of the first-plaintiff. The plainiiffs thus claim rights as pledgees in respect of the said total quantity of 365 bags of supari. ft is not disputed that pursuant to certain complaints lodged by certain Banks alleging, inter-alia;, 'that the said goods were, stolen from the Banks godowns, the Mangalore Police seized the first consignment of 200 bags of supari from the godowns of the said clearing agents of the second-plaintiff at Bombay and that the subsequent two consignments of 60 bags and 105 bags respecting which the corresponding way-bills had been delivered to the second-plaintiff were seized from the carriers during transit The said quantity of 365 bags of supari was sold on 7-12-1958 as. per the order of the District Magistrate, Mangalore, and a sum of Rs. 99,150/- kept in deposit. The Criminal Case against the partners of the third-defendant firm in connection with which the said 365 bags of supari came to be seized having ended in an acquittal, consequential directions were issued for the return of the proceeds of the sale of seized goods to the persons from whose custody the goods were seized. However, at the instance of the official Receiver in IPNo. 7 of 1958 on the file of the Civil Judge, mangalore, the said Court called for the said amount of Rs. 99,150/- and the amount is now in deposit therein. In the said IP. 7 of 1958 plaintiffs made an application RIA. 914 of 1964 claiming that the said sum of Rs. 99,150/- constituted substituted security in place of the said 365 bags of supari already pledged in their favour by the insolvent. The Official Receiver by his report dated 22-8-1963 also sought for orders directing payment of the said sum to him on the ground that it constituted a part of the insolvent's estate. 99,150/- constituted substituted security in place of the said 365 bags of supari already pledged in their favour by the insolvent. The Official Receiver by his report dated 22-8-1963 also sought for orders directing payment of the said sum to him on the ground that it constituted a part of the insolvent's estate. By its order dated 15-4-1966, the Insolvency Court deferred a decision thereon and refused, for the time being, the prayer of the Official Receiver and directed that the said proceeds of sale of 365 bags be invested in a Bank for a period of one year. So far as the prayer by the plaintiffs in RIA. 914 of 1964 was concerned, the Insolvency Court made an order that the said petition be closed, however, reserving to plaintiffs the liberty to renew the prayer at the appropriate time. The plaintiffs thereafter instituted the present suit from which the appeal arises as OSNo. 703 of 1968 in the Court of the Munsiff at Mangalore, The suit was transferred to the file of the Civil Judge, Mangalore, pursuant to the order dated 13-10-1969 of the Distriat Judge, Mangalore South Kanara, in Mis. Case no. 17 of 1968. On transfer to 'he Court below the suit was renumbered as OSNo. 131 of 1969. The official Receiver was impleaded as a party-defendant to the suit; so were the several Banks, which in several proceedings separately instituted by them had urged their preferential claims respecting the sale proceeds of the said 365 bags. The Official Receiver and the Banks contested the suit. Defendants 2 to 4 however remained ex parte. On the pleadings before it, the trial Court settled a number of issues of which, issues-1, 4 and 8 are material. The said issues read : 1. Whether the suit is barred under Sec. 4 of the Provincial Insolvency Act ? 2. Whether the suit is barred limitation ? ( 3 ) WHETHER the 1st plaintiff is entitled to claim by way of substituted security for 365 bags of supari, their sale price of Rs. 99,150/- ? ( 4 ) ON a consideration of the evidence on record, the Court-below held /that the claim that plaintiffs were secured-creditors in respect of 200 bags of supari of the value of Rs. 57,600/- and that in respect of the balance of 165 bags, they could not establish their right as such securedcreditors. 99,150/- ? ( 4 ) ON a consideration of the evidence on record, the Court-below held /that the claim that plaintiffs were secured-creditors in respect of 200 bags of supari of the value of Rs. 57,600/- and that in respect of the balance of 165 bags, they could not establish their right as such securedcreditors. However, in view of the Court's finding on Issue No. 4 that the suit was barred by time, the Court-below declined relief and nonsuited plaintiffs. The plaintiffs have preferred this appeal against the said judgment and decree. ( 5 ) WE have heard Sri. B. P. Holla, learned Counsel for the appellants-plaintiffs; sri. U. L. Narayana Rao, learned Counsel for Respondent no. 1, Sri Tukaram S. Pai learned Counsel for Respondent No. 5 ; sri. S. Mani, learned Counsel for Respondent No. 6, and Sri. Padubidri Raghavendra Rao, learned Counsel for Respondent No. 7. We have been taken through the evidence on record and the judgment of the Court-below. ( 6 ) SRI. B. P. HOLLA, learned Counsel for the plaintiffs; appellants, has urged two contentions; first, that the view of the Court below that the plaintiffs' suit is barred by time is unsupportable and secondly that the finding of the Court-below that 165 bags of supari out of 365 bags did not constitute the subject-matter of the pledge in favour of the plaintiffs is erroneous and stands vitiated. ( 7 ) THE learned Counsel for the concesting respondents however sought to suppont the decree of the Court-below, ( 8 ) THE points that, therefore, arise for determination in this appeal are : (a) whether ithe plaintiffs' suit was statute-barred, and (b) whether the Court-below was in error in its view that plaintiffs were not pledgees respecting the remaining 165 bags of supari. ( 9 ) POINT (a) : In examining the nature and scope of the proceedings in the Court-below, it is relevant to note that in IPNo. 7 of 1958 both the Official Receiver as well as the plaintiffs urged rival claims respecting the said 365 bags of supari which, having been sold by orders of the court, were now represented by their sale-proceeds. Under the provisions of Sec. 4 of the Provincial Insolvency Act, which are declaratory of the ambit of the jurisdiction of the Insolvency Court, 'the Insolvency Court has concurrent jurisdiction with the ordinary tribunals to try questions of title which might arise between the Official Receiver on the one hand and the assignee from the insolvent on ithe other. Whether the Insolvency court would elect to try the question of litle or relegate the parties to the ordinary tribunals is a matter for that Court to decide according to the circumstances of the case. Sec. 4 of the Provincial Insolvency Act empowers the Insolvency Court, for the sake of convenience, to decide any questions of title, priority and the like which arise, in the course of the insolvency proceedings and it is open to that Court to try such questions or leave them to be decided by an ordinary Civil Court if it chooses to do so. In the present case, such an adjudication of 'the rival claims to title; between the Official Receiver and the plaintiffs were specifically raised before and were seized of by the Insolvency Court, by virtue of said RIA. 914 of 1964 preferred by the plaintiffs and of the. Official Receiver's report dated 22-8-1963. The operative part of the order day 15-4-1966 of the Insolvency Court in this behalf reads :" 6. The amount is lying idle in this Court since 1961. RIA no. 727/1965 has been filed by the Syndicate Bank Ltd, to pass an order directing the deposit of the amount in fixed deposit in the three banks. When there is srong objection in giving the amount in the hands of the Official Receiver, I do not think it proper to give the same to the three banks who are claimants and whose claims have not yet been established. I direct that the said amount be deposited in the State Bank of India Mangalore in fixed deposit for one year. Order the request made in the repont of the Official Reciever to hand over the sale poceeds of areca to him is disallowed at present. The entire amount be deposited in the State Bank of India, Mangalore in the fixed deposit for one year. " ( 10 ) IT is clear from the above that the Court merely deferred the adjudicaton on the matter. By a corresponding order in RIA. The entire amount be deposited in the State Bank of India, Mangalore in the fixed deposit for one year. " ( 10 ) IT is clear from the above that the Court merely deferred the adjudicaton on the matter. By a corresponding order in RIA. 914 of 1964, the Insolvency Court direated the said petition to be closed for the time being and gave liberty to plaintiffs to renew the same at the appropriate time. The "appropriate time" was obviously the time at which the report of the Official Receiver dt. 22-8-1963 would come up again for consir deration before the Court. The orders of the Insolvency Court on the report of the Official Receiver dt. 22-8-1963 and in RIA. 914 of 1964 cannot be construed as amounting to an order by which the Insolvency court declined to decide the question of title raised before it and relegated the parties to a suit. It was open to the Insolvency Court to have done so; but in the present case that Court cannot be held to have done that, particularly in view of the fact that the Official Receiver's report in dt. 22-8-1963 was still seized of by and pending before it. ( 11 ) IT is also- relevant to note that the Court before which IP. 7 of 1958 was pending and the Court which disposed of the present suit are one and the same. All the parties that were necessary for a proper and effective adjudication on the prayer made in the Official Receiver's report dt. 22-8-1963 and RIA. 914 of 1964 in IP. 7 of 1958 were before the court below in the suit. If there was an adjudication by the Insolvency court in RIA. 914 of 1964 and on the Official Receiver's report, the appeal therefrom would in the ordinary course lie to the Dist Court, Mangalore indeed, the present appeal was preferred before 'the Dist Court, Mangalore, sk and was withdrawn by this Court in exercise of powers under s. 24 of the CPC. In these circumstances, it is only appropriate in the interests of justice that the proceedings in the Court below in suit OS. 131 of 1969 from which this appeal arises, should be treated as an adjudication-which in substance and reality it is-on the Official Receiver's report dt. 22-8-1963 and on the revived RIA. In these circumstances, it is only appropriate in the interests of justice that the proceedings in the Court below in suit OS. 131 of 1969 from which this appeal arises, should be treated as an adjudication-which in substance and reality it is-on the Official Receiver's report dt. 22-8-1963 and on the revived RIA. 914 of 1964, more particularly in view of the fact that the Court that disposed of the suit was the very court before which IP. 7 of 1958 was pending and that all the necessary parties were before it in the suit. We, accordingly, treat the proceedings in OS. 131 of 1969 in the Court below as being in substance and effect an adjudication on the said Official Receiver's report dt. 22-8-1963 and on the revived RIA. 914 of 1964. Thus viewed, no question of bar of limitation for the adjudication would at all arise and it requires to be and is accordingly held that there was no bar of limitation to the proceedings before the trial Court. The correctness of the finding of the Court below that plaintiffs were secured creditors in respect of 200 bags of supari and are entitled to the proceeds of sale thereof is not seriously challenged before us. We have perused the evidence on record bearing on this point. It is admitted that the 200 bags of supari were, in fact, seized from the physical custody of D. Abraham and Sons (P) Ltd, the: clearing agents of the first-plaintiff. We have, therefore no hesitation in affirming the finding of the Court below in this behalf and to hold that the said 200 bags constituted the subject-matter of a pledge with plaintiffs. Sri Holla prays that a decree in this behalf be made in favour of the first plaintiff alone. ( 12 ) POINT (b): The next question is whether the plaintiffs were pledgees in respect of the remaining 165 bags of supari also. These, 165 bags were seized in transit, while. the goods were being transported in lorries to Bombay, There is evidence that the concerned way-bills were in the custody of the plaintiffs. ( 12 ) POINT (b): The next question is whether the plaintiffs were pledgees in respect of the remaining 165 bags of supari also. These, 165 bags were seized in transit, while. the goods were being transported in lorries to Bombay, There is evidence that the concerned way-bills were in the custody of the plaintiffs. The Court below held that in the absenca of any evidence to show that in the ordinary course of business such way bills were used as proof of possession of control of goods or of authorising or purporting to authorise, either by endorsement or delivey, the possessor of the document to transfer or receive the goods thereby represented by the way-bills could not be held to be 'document of title' to goods and that, in these cicumstances the mere possession of way-bill did not amounst to possession of goods so as to sustain the claim of plaintiffs as pledgees even in respect of the said 165 bags of supari. The correctness of this view is challenged by Sri B. P. Holla. ( 13 ) SRI B. P. Holla contends that at all events the two way bills in question admit of being construed and be held to amount to "orders for the delivery of goods" and therefore, constitute "document of title to goods" within the meaning of S. 2 (4) of the Sale of Goods Act, and that, accordingly, the plaintiffs must be held to have been in constructive possession of the goods. The expression "document of title to goods" is used in two senses: a narrow common law sense and a much broader statutory sense. There is no authoritative definition of "document of title to goods" at common law, but a document relaing to goods the transfer of which operates as a transfer of the constructtvie possession of the goods, may operate as transfer of the property in them. In Benjamin's "sale of Goods" (1974 Edn.), the incidents of a "delivery order" is referred to as follows :" Delivery orders and warrants-The term "delivery order" is used to describe documents of various kinds. In its most natural sense, it refers to an order given by an owner of goods to a person in possession of them, e. g. as carrier or ware-houseman, directing the latter to deliver the goods to the person named in the order. In its most natural sense, it refers to an order given by an owner of goods to a person in possession of them, e. g. as carrier or ware-houseman, directing the latter to deliver the goods to the person named in the order. However, the term is not one of art and is also used in a number of quite different senses. Thus it may be used to refer to a document issued by a person in possession of goods stating that he will deliver the goods to a named person, or to his assignee, or to the holder; such a document is sometimes referred to as a "delivery warrant". The term "delivery order" may, again refer to an order addressed to a person who is not in possession of the goods at all, but who is expected to acquire possession or some other kind of control; thus it may refer to an order by a seller of goods given to his agent at the port of destination, directing the agent to deliver the goods, when they arrive, or to cause them to be delivered, to some person there, usually to the buyer. It cannot be said that any of these meanings is the 'correct' one ; and where a contract uses the term "delivery order" the question in which sense the term is used is one of construction in each case, (vide para 1389 ). Delivery order not a document of title at common law-Two separate but related rules determine its operation. The first is that if A, the owner of goods in B's warehouse, orders B to deliver the goods to C, the mere issue of the order will not transfer constructive possession or amount to a delivery to C. There is no delivery until b attorns to C, i. e. , acknowledges to C that he holds the goods on his behalf. Where the relationship between A and C is that of buyer and seller this rule is now stated in S. 29 (3) of the Sale of Goods act. Attornment requires a positive act; mere failure to repudiate a delivery order will not suffice. If in our example B were to issue a delivery warrant in favour of C, this would presumably amount of itself to attornment. Attornment requires a positive act; mere failure to repudiate a delivery order will not suffice. If in our example B were to issue a delivery warrant in favour of C, this would presumably amount of itself to attornment. The second rule is that if the delivery order or warrant is after attornment further transferred by the person in whose favour it was issued (i. e. if in our example C transfers to D) a fresh attornment by the person in possession (B) will be required to transfer constructive possession to the transferee (D ). " (vide para 1391 ). Although a delivery order is not (in the absence of proof of a special custom) a document of title at common law, it is a "warrant or order for the delivery of goods" within the statutory definition of "document of title" in Sec. 2 (4) of the Sale of Goods Act 1930. But this in no way affects the principle that, as between pledger and pledgee, constructive possession of goods in the actual possession of a third party will not be transferred by the issue or transfer of a delivery order but only by attornment. A similar question came up before a Bench of this Court in Canara industrial and Banking Syndicate Ltd. , v. Ramachandra Ganapathy, AIR. 1968 Mys. 133= (1967) 1 Myslj. 490, wherein it was observed :"the Supreme Court referring to the definition of 'document of title' in the Sale of Goods Act, 1930, observed that the inclusion of the railway receipts in the definition indicates the legislative intention to accept the mercantile usage found by the Judicial Committee in 43 Ind App 164=air 1961 PC 7. Therefore the appellant cannot derive any help from the decision of the Supreme Court reported in AIR 1965 SC 1954 except to the extent that if the way bill comes within the definition of the words 'documents of 'title' it could be treated like the railway receipt as in that case. In the absence of the way bill being included in the definition, the test applied by the Judical Committee in respect of the railway receipts should be applied in the case of the way bill also. . . . . . . . . In the absence of the way bill being included in the definition, the test applied by the Judical Committee in respect of the railway receipts should be applied in the case of the way bill also. . . . . . . . . "" In the absence of a unifom and definite usage regarding the issue of way bills and their transfer on endorsement as equivalent to pledge of goods, we are unable to accept the contention that the way bills can be treated as 'documents of title' to goods coming within the meaning of the words 'warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof to the possession or control of goods or purporting to authorise either by endorsement or delivery the possessor of the document to transfer or receive the goods thereby represented'. In view of this conclusion 'that the way bills are not documents of title the legal position with regard to the pledge of these way bills is that the owner of the goods cannot pledge the goods covered by the way bills, as in the present case, unless the carriers are properly notified of the transfer and they agree to hold the goods as bailee for the pledgee, i. e. , the Bank It is not the case of ithe plaintiff that they notified the second defendant of the transfer of the way bill and the pledge of the goods in their favour and asking them not to deliver the goods to any one except themselves or to any one under their order. Therefore, we cannot accept the contention of the appellant that there has been a valid pledge of the goods in their favour, as security for the amounts advanced by them to the first defendant,"tested in the light of these principles, it cannot be held that the way-bills in question could be considered as "documesntg of title to goods" the mere possession of which, without more, would constitute possession of goods. ( 14 ) THE decision of 'the Supreme Court in Bayyanna Bhimayya v. Government of A. P. , AIR 1961 SC 1065 . relied on by Sri Holla is really of no assistance to him as the facts of the said case are clearly distinguishable. Accordingly, we hold point (b) against the appellants. ( 14 ) THE decision of 'the Supreme Court in Bayyanna Bhimayya v. Government of A. P. , AIR 1961 SC 1065 . relied on by Sri Holla is really of no assistance to him as the facts of the said case are clearly distinguishable. Accordingly, we hold point (b) against the appellants. ( 15 ) IN the result, this appeal is allowed in part and in reversal of the decree of dismissal, the first plaintiff is declared the pledgee of 200 bags of supari and entitled to the proceeds of sale thereof out of the sums in deposit in IP. 7 of 1958. So far as the claim of the plaintiffs for a declaration of their rights respecting the remaining 165 bags of supari is concerned, the same is dismissed. Parties are directed to bear their own costs. --- *** --- .